Hello, My son lost his cell phone about a year ago but never bothered to tell anybody. It turns out his friend stole the phone from him and made a lot of calls, including to friends of his and to our house! So it will be difficult to prove that the calls were not his, b/c if they compare phone #'s to previous usage it will look very similar. Now my question is this- when I cancelled the phone and said the charges were not mine, and that the phone was lost they said that they analyzed the calls and the charges are indeed mine. I've never asked for 'formal validation', only a call to customer support about a year ago saying the charges were not mine. Today I received a complaint. Is there a way I can stop the complaint in it's tracks with a validation letter? If I would've known a year ago I would've sent validation request immediately.
Upon closer examination of the complaint, I just realized that this is the first communication from this CA, Progressive Management Systems. I've never received any notices from them in the past, and definitely have not signed for anything in the mail related to this alleged debt. They sent and filed a complaint straight out of the chute (using standard checkbox forms). I'd like to file an answer alleging that: 1) the debt is not mine due to illegal use of phone 2) I never received notice of collection In fact, I'd love to hit them up with a validation letter today... does that have any bearing if I have 30 days to file an answer if I hit them with a validation letter after being served complaint?
The CA can file suit against you at anytime unless you have already disputed and are awaiting validation. You need to respond to this within 20 days (it may be more or less in your area) or the Plaintiff will seek a default judgement. Is this in small claims? How is the complaint worded (ie: are they suing you for debt or breach of contract?) I have some experiance with this and may be able to help.
They filed in Superior Court. They used standard forms with checkboxes, and the attorney's office is in LA and I am in SF, so I am thinking maybe if I file a vigorous answer they will back off or try to settle. They list damages of ~$1500 plus attorney fees of ~$380... but I remember the last before I received after I reported it stolen was only about $900. I am curious where the additional charges are? If this was just a simple collection notice I'd send validation and sue them for violations as appropriate! But it's a complaint so I need to know a good way to respond. I've responded pro se before so I'm not afraid of the court system at all. Just need the relevant data. This claim was assigned to the CA by Verizon. They claim that: 1. I "became indebted to plantiff's assignor (i.e. Verizon) on an open book account for money due." 2. I "became indebted to platniff's assignor (i.e. Verizon) because an account was stated in writing by and between plantiff and defendant in which it was agreed that defendant was indebted to plantiff." #2 is just the wirless phone contract I signed. That's it, only those two causes of actions. Looks pretty straightforward that I can reply with an answer claiming that: 1. the debt is not mine b/c phoen was stolen 2. CA never provided collection notice per FDCPA 3. anything here regarding validation or differences in the $1500 they want vs. the $900 bill I received originally before all their late fees + interest or whatever else they do? Thanks for your help.
1. Just because the phone was stolen does not mean you are not contractually obligated to pay for it. Did you have theft/loss damage insurance? Not likely. 2. Who said CA is required to give you notice? What section of the FDCPA requires that? 3. I would guess your answer would be that the balance is incorrect and whatever else they may have done incorrectly. I would definately be asking for signed contract, account of all charges, payments, interest. Lastly I would see what they might settle for and I would offer about $300 and then perhaps come up from there.
Re: Re: served complaint today - question! Yes, #3 is the option I'm leaning towards. I don't think the lawyer (400 miles away) is likely going to travel down for court hearing, unless they have some arrangement for some other lawyer/firm to cover, but we're only talking $1500 and they listed only $380 as attorney's fees. Regarding #2, I don't see where in FDCPA that CA's have to give any kind of notice before filing lawsuit outright... however, if CA's don't send notice to collect before suing, how can the consumer request demand for validation, etc? If CA's are not required to send notification then wouldn't all CA's just file complaint from the outset (assuming the cost/reward is worth it). Also, even if I claim that I was never sent any notices, what if the CA claims that they did? I never signed for anything, but it's just their word against mine.
Re: Re: served complaint today - question! What are the odds of winning by answering the complaint? I just read this from Bill Bauer's web site: http://pub50.ezboard.com/fcreditwrenchfrm1.showMessage?topicID=598.topic
Re: Re: served complaint today - question! someone correct me if I'm wrong but if the CA did not purchase the account. They can't sue you because of lack of proper standing. They are not the injured party but Verizon is. Verizon will have to sue you or Verizon's lawyers. You could file an answer that plaintiff lacks standing. Run this by WhyChat he might be able to give helpful advice on this one.
Re: Re: served complaint today - question! The initial contact from a CA can be a lawsuit. They're supposused to stay any action on the suit itself until they validate but, they can sure file the suit per Sprouse vs City Credits. http://www.licatalaw.com/articles/article_collection.htm
Re: Re: served complaint today - question! If you said that your sons friend stole the phone, and go make out a police report. and the police go talk to the kid. and he fesses up. which he will. and you get the signed statement from him, you will be out of this mess completely. Im not sure friend is the best word to describe the person who stole the phone. so prosecuting him should not be a problem. and if they really want to they can look at the times of calls ,and have the person who was called tell the police exactly who was doing the calling,... follow me..
Re: Re: served complaint today - question! I agree with the previous poster. I'd file a police report. This is no friend!
Re: Re: served complaint today - question! I agree with the last few posts. I don't know exactly how it works when a call phone is stolen, but I'm sure it has to be reported pretty quickly, so they can minimize the damages. They definitely incur real costs when phones are used and if someone steals your phone and you don't report it for a year, they sure aren't going to just forget about those costs. If you had reported it right away then they probably would have been willing to remove the calls from the last week or so from your bill and cancel the service, so that neither you or they incur further costs. Because you didn't report it for a year, most likely you are responsible for the charges. Check your contract, my guess would be that there is a time limit for reporting stolen phones. It's similar to the way it works for lost or stolen credit cards, I believe. With a credit card, if you report it lost within 2 days you're only responsible for up to $50 in fradulant charges. If you report it within 60 days you're only responsible for up to $500 in fradulant charges, and if you report it after 60 days you're responsible for all of the fradulant charges. That said, if you know for sure that your son's friend took it, then definitely file a police report and hopefully they can make him responsible for the bills. I'm not sure how recently he was using the phone, but the police may be able to match phone records and talk to the people he called to verify that it wasn't your son placing the calls. HTH, Brett
Re: Re: served complaint today - question! This was a year ago and both kids are at different colleges. I just want to find a good way to deal with the lawsuit. I am willing to settle for a reasonable fee to take responsibility b/c my son did not tell me about the phone for almost two months when I saw the bill and asked him about it. Nevertheless, I want to fight this with the most leverage possible. The CA is the asignee acting on behalf of Verizon. Everything looks okay here. It's just I wish the CA would've sent a collection notice first so I could respond with the usual CN validation tools. They open fired with a lawsuit. How do I ask them to validate with an answer pending? Do I file an answer and separately send a validation request regardless? Maybe if they receive my validation request and answer they'll think I'm serious and may opt to settle? What can I use in my answer? I could claim these debts are not mine, that I reported phone stolen, but they'll just say they have no record and it's their word against mine.
Re: Re: served complaint today - question! Here's a thought- if I send request for validation during this 30-day period I have to answer the complaint (have 29 days left), won't that prevent the CA from filing motion for summary judgement? Yes, my answer should show enough dispute that judge would deny an MSJ anyways, but wouldn't a request for validation guarantee that they cannot win MSJ? Even if they did get a summary judgement somehow, that would be a good thing! I can know get the judgement easily vacated. Of course I'd rather not go that route but just thinking out various scenarios here. My question is this- do I have a right to demand validation upon being served complaint? It doesn't matter that it's a complaint and not an official collection notice, right? That will at least delay the process long enough that I have time for dialogue, and also to let them know that I'm an informed consumer!
Re: Re: served complaint today - question! http://www.ftc.gov/os/2000/04/fdcpaadvisoryopinion.htm You need to read the above opinion letter. It reads like they wrote it for you.
Re: Re: served complaint today - question! Actually that much money, across interstate lines is a federal crime.. For that type of money the feds would go pick the kid up In Alaska . They tend to frown highly upon theft of services.. Especially with Identity theft the way it is.. do as you wish, but if you give them a dime you have made a poor choice in my book..
Re: Re: Re: served complaint today - question! The problem is it will be a "he-said, he-said" scenario. The "friend" will say my son lent him the phone. My son will say it was lost. But why did my son take so long to tell me? Stupid teenage reasons, but that doesn't look good when disputing that those calls weren't authorized. To make it worse, the calls were to the same circle of friends (same history of phone numbers as in previous bills), including calling our house a few times. Whether I am liable for those charges or not, b/c I didn't report the lost phone in a timely manner, is a good question. I'm looking for other ways to challenege this lawsuit, and any pressure I can put on the CA to get them to settle is fine. I don't mind paying a couple hundred bucks to take care of this... that is my preference. I acknolwedge my son made mistakes in not tell me about the phone being lost which lead to these problems in the first place. Nonetheless, the question is can I validate after being served complaint, and what advantages will that give me in either winning complaint and/or getting CA to settle? Remember, the CA's lawyer used fill-in-the-blank forms and lives 400+ miles away.... maybe they are just hoping for simple default judgement here.
Re: Re: Re: served complaint today - question! Okay, read it, and here's my question. I know the CA has never sent me any notices prior to being served this complaint. I will now send validation request. What if CA insists to the judge that they sent collection notices? It's their word vs. mine. In dealing with previous CA's, collection notices are always sent via first class mail. So what happens when it's he-said, she-said? Who has burden of proof showing that collection notice was sent and I did not dispute in original 30-days?
Re: Re: served complaint today - question! You need to bide your time here so you can at least make the Plaintiff realize this won't be a cake walk. I don't think you have a legal leg to stand on because you didn't notify the cell company within a reasonable time and you failed to file a police report. Basically YOU failed to mitigate your damages. Your responsible for the charges wether they were incurred by your son or his "friend". File an answer with the court, use affirmative defenses so the plaintiff can't move for summary judgment. Contact the plaintiffs attorney and tell them you not only dispute the debt, but you need copies of contract/statements for your defense. Wait a few days, then contact the att. and seek an out of court settlement. Alleging an FDCPA violation at this point will probably fall on deaf ears and most likely will irratate a judge, something you don't want at this point.
Re: Re: Re: served complaint today - question! Yes, I understand this and agree. This is why I am willing to settle for a reasonable amount. I'm just looking for best way to put pressure on the CA for leverage in negotiations. Basically, I'm willing to pay some amount, but what else can I do to help win the good fight? I mention FDCPA because this is the FIRST communication from the CA. They just fired a lawsuit on my broadside. If you read at that opinion letter about half way down it says: If an attorney debt collector has had no prior communications with a consumer before serving a summons or other court document on the consumer, that document would constitute the "initial communication" with the consumer if it conveys information regarding a debt. The attorney would therefore have to include the written notice mandated by Section 809(a) (often referred to as the "validation notice" in the court document itself or send it to the consumer "within five days after the initial communication." So questions: 1. Does this mean that since this (the complaint) is my initial communication from the CA, that if they don't include any additional information in the complaint other than they have written contract that I owe X amount, that is not enough information? Do they need to include the same information in the complaint itself as if they were validating? 2. Suppose they did not do #1 above in the complaint, and they do not send separate validation to me within 5 days.... now do I ask for validation as a separate step? Or do I let them hang themselves and do NOT ask for validation? Just mention it in my answer that they did not validate? 3. What if CA insists that they send me collection notices (i.e. the complaint would not be the FIRST communication). I definitely have never signed for anything, and have no recollection of any collection notices from CA, only from OC. What will happen when it's a he-said, he-said situation? Will my answer win b/c I claim this (the complaint) is first communication from CA and they didn't provide validation info, and the burden of proof is on them that they've sent me collection notices? If they were smart wouldn't they have sent ITS letter with some sort of signature tracking? 4. What happens if I answer and they ammend their complaint with validation information? Does it matter that they do this way past 5-day period? Looking for advice. I'm looking to put as much pressure on CA as possible. I don't mind settling this debt for a couple hundred bucks, as the circumstances behind it are a bit convoluted. Just looking for best way to get leverage as part of the lawsuit process. The CA used fill-in-the-blank forms and their office is 400 miles away so I'm hoping they will fold rather easily to an informed consumer. At least be willing to settle for much less...
